Dowding v The Character Group Plc
Hello, this week we look at some recent case law involving protected disclosures and cost awards. If you missed out on October’s newsletter, you can find that here. If you’d prefer to see our last case update, you can find that here instead.
In this case the Claimant,
previously a finance director at Character Group, alleged unfair dismissal on grounds that he had made protected disclosures. The Employment Tribunal (ET) dismissed this claim, concluding that his disclosures did not meet the legal criteria for protected disclosures as they were not reasonably believed to be in the public interest. Additionally, the tribunal found that the dismissal was not due to these disclosures but was based on a breakdown in trust and confidence due to the claimant’s conduct.
One of the primary issues was the Claimant’s conduct. While we can only speculate as to why, the Claimant’s representatives ceased his instructions partway through the process. When the Claimant represented himself, the Tribunal were less than pleased with his pursuit of a claim with no reasonable prospects of success, giving of evidence which he knew to be dishonest, and making unfounded accusations that a document produced was forged. Following a dismissal of the case, the Respondent made an application for costs given the Claimant’s case and conduct, which was granted.
In a separate costs hearing, the ET awarded the respondent capped costs on an indemnity basis, including an additional £20,000 to cover the costs of the hearing itself. However, on appeal, the EAT held that while the ET has the power to make costs awards on an indemnity basis under certain conditions, it must provide clear reasoning when doing so. The EAT remitted the case back to the ET for further review, stating that the tribunal did not sufficiently justify why it considered an indemnity award appropriate, nor did it adequately consider the proportionality of the £20,000 costs award for the hearing itself.
Takeaway Points
The primary issues to bear in mind when dealing with similar matters are:
- Tribunals generally avoid imposing costs to prevent deterring claims but can do so if a party acts vexatiously or abusively.
- Key takeaway: honesty is crucial in court, as dishonesty negatively impacts a case.
- Tribunals may award indemnity costs for extreme conduct but must provide detailed reasons for doing so.
HR teams should carefully document employee conduct and maintain records during disputes, which could support cost awards against unreasonable claims.
